92 Decision Citation: BVA 92-19956
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 91-51 892 ) DATE
)
)
)
THE ISSUE
Whether the veteran's disability compensation should have
been suspended due to the size of his estate.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
R. A. Caffery, Counsel
INTRODUCTION
The veteran served on active duty from December 1943 to
March 1946 and from December 1947 to November 1948. An
appeal has been taken from a March 1991 decision by the
Regional Office, Columbia, South Carolina, which suspended
the veteran's disability compensation effective in March
1991 on the basis that he had been rated incompetent for
Department of Veterans Affairs (VA) purposes, had no
dependents and had an estate in excess of $25,000. The
notice of disagreement was received in October 1991. The
statement of the case was issued later in October 1991. The
substantive appeal was received in November 1991. The case
was received at the Board of Veterans' Appeals (hereinafter
the Board) in December 1991. The appellant, the veteran's
conservator, is represented by the Disabled American
Veterans and that organization submitted additional written
argument on behalf of the appellant in March 1992. The case
is now ready for appellate review.
REMAND
The regional office indicated in the statement of the case
that the veteran had been rated incompetent for VA purposes
since a rating action of July 1958.
A review of the July 1958 rating action reflects that the
rating action was based on a VA examination conducted in
June 1958. In the VA examination report, it was indicated
that the veteran's psychiatric condition was in partial
remission and the examiner expressed an opinion that the
veteran was competent.
The July 1958 rating action continued a 100 percent
schedular evaluation for the veteran's psychiatric disorder
that had been in effect since 1955. The rating board
indicated that for all practical purposes the veteran had
not improved enough to warrant a reduction in the
evaluation. The rating board further stated that it would
"continue the rating at 100%, including the competency as of
this examination, but also, observant of the fact that the
veteran is still incompetent by court order." Following the
classification of the veteran's psychiatric disorder in the
rating action, it was indicated that he was determined to
have been competent from June 9, 1958, the date of the VA
examination. The rating action concluded with a statement
that the veteran was incompetent from February 2, 1953, by
order of a county court.
On the basis of the information set forth in the July 1958
rating action, it is unclear whether the veteran was
considered to be competent or incompetent for VA purposes as
a result of that rating action. There is no subsequent
rating action holding him to be incompetent although a
subsequent rating decision that was undated and unsigned
(apparently completed in August 1969) refers to the
incompetency finding by the county court in February 1953.
The matter of whether or not the veteran has been considered
incompetent for VA purposes is, of course, an essential
aspect of whether the veteran's disability compensation
should have been suspended due to the size of his estate.
On the basis of the present record, findings of fact and
conclusions of law are being deferred pending a REMAND for
the following action:
The regional office should review the
July 1958 rating action in order to
determine whether the veteran was rated
competent by that rating action or
whether he remained incompetent for VA
purposes. The rationale for decision
should be made a part of the record. If
it is determined that the veteran was
held competent for VA purposes by virtue
of the July 1958 rating action,
appropriate rating action should now be
taken and a decision should be made
whether the veteran is currently
considered competent or incompetent for
VA purposes.
When the above action has been completed and if the
determination remains adverse to the appellant, the
appellant and the representative should be sent a
supplemental statement of the case and be afforded the
appropriate time in which to respond. Thereafter, the case
should be returned to the Board for further appellate
consideration, if otherwise in order. No action is required
of the appellant unless otherwise notified.
The purpose of this REMAND is to obtain clarifying data and
also to ensure that the requirements of due process of law
are satisfied. The Board intimates no opinion as to the
disposition warranted in this case pending completion of the
requested action.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
CHARLES E. HOGEBOOM (MEMBER TEMPORARILY ABSENT)
JAMES R. ANTHONY
*38 U.S.C. § 7102(a)(2)(A) (1992) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
Under 38 U.S.C. § 7252 (1992), only a decision of the Board
of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of
a preliminary order and does not constitute a decision of
the Board on the merits of your appeal.